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State v. Harvey

Decided: June 7, 1994.

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
DENNIS J. HARVEY, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Atlantic County.

Before Judges King, Havey and A.a. Rodriguez.

Rodriguez

The opinion of the court was delivered by

RODRIGUEZ, A.A., J.S.C. (temporarily assigned).

We affirm the denial of defendant's motion for jail credit for days he spent in custody pending sentence after a parole warrant was lodged. Like the trial Judge, we conclude that that confinement relates to a prior sentence and is properly credited to the parole violation term.

On August 12, 1991, defendant was arrested in Pleasantville and charged with third degree possession of cocaine with the intent to distribute or dispense while within 1,000 feet of school property, N.J.S.A. 2C:35-7, and third degree conspiracy to distribute cocaine, N.J.S.A. 2C:5-2, 2C:35-5a(1) and 5b(2) (the new charges). At the time, defendant was on parole from the New Jersey State Prison. Bail was set at $15,000 cash which defendant was unable

to post. Three days later, a parole detainer was lodged against defendant pursuant to N.J.S.A. 30:4-123.62.

Defendant entered a negotiated plea of guilty to the new charges in exchange for the State's sentence recommendation of a four-year term with a two-year period of parole ineligibility to run concurrent with any parole revocation eligibility term.

The sentencing Judge merged the two convictions and imposed the recommended sentence. However, over the objections of defendant, the Judge awarded only three days jail credit. The credit represented the days defendant spent in jail on the new charges before the parole warrant was lodged. The balance of the pre-sentence confinement was deemed to be a credit against any term imposed on the parole violation. Later, the New Jersey State Parole Board (board) revoked defendant's parole, imposed a twelve-month eligibility term, and credited defendant with all days spent in custody from the date the detainer was lodged.

I

On appeal, defendant argues that the full period of presentence confinement should be credited to the sentence imposed on the new charges.*fn1 Defendant relies on R. 3:21-8, Lipschitz v. State, 43 N.J. Super. 386, 128 A.2d 728 (App. Div. 1957), and State v. Williams, 266 N.J. Super. 154, 628 A.2d 837 (Law Div. 1993). These authorities are either distinguishable or unpersuasive.

Although R. 3:21-8 provides that a defendant shall receive credit for any pre-sentence custody, once a parole warrant was lodged defendant was no longer confined solely as a result of the new charges. Even if defendant had been able to post bail on the new charges, he would have remained in custody. ...


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